055-NLR-NLR-V-56-E.-DON-SEEMON-Appellant-and-H.-DIAS-S.-I.-Police-Respondent.pdf
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NAGALINGAM A.C. J.—-Don Seemon v. Dias
1953Present : Nagalingam A.C.J.E. DON SEEMON, Appellant, and H. DIAS (S. I. Police),Respondent
S. C. 1160—M. C. Colombo, 32,000
Excise Ordinance {Cap. 42)—Possession of excisable article—Difference between s. 43 {a)and s. 44—Misjoinder oj charges.
Tho charge against the accused was that he had in hia possession seven bottlesof unlawfully manufactured arrack in breach of section 43 (a) of the ExciseOrdinance, but the penal section under which the offence was punishable wasstated to be section 44 of the Ordinance.
Held, that sections 43 (a) and 44 created two distinct and separate offences, andthat the reference to those two sections in respect of one and tho same chargohad the effect of a joinder of two separate charges.
^V.PPEAL from a judgment of the Magistrate's Court, Colombo.
C. S. Barr Kumarakulasinghe, with Malcolm Perera, for tho accusedappellant.
A. C. de Zoysa, Crown Counsel, for the Attorney-General.
Cur. adv. vuU.
August 26, 1953. Nagalingam A.C.J.—The quostion in this appeal is whether there is a misjoinder of chargeswhich is said to arise in this way : The charge was that the appellant hadin his possession seven bott les of unlawfully manufactured arrack in breach
NAOALIKQAM A.C.J.—Don Seetnon v. Dias223
of section 43 (a) of the Excise Ordinance, but the penal section underwhich the offence was punishable was stated to be section 44 of the Ordi-nance. It will be seen on a reference to section 43 that that section itselfprescribes the penalty for an offence committed thereunder.
Both before the learned Magistrate and me it has been contended onbehalf of the appellant that sections 43 (a) and 44 create two distinct andseparate offences, and that the reference to these two sections in respectof one and the same charge has the effect of a joinder of two separatecharges. It is true that under both sections 43 (a) and 44 possession of anexcisable article is punishable but the nature and the oircumstances ofpossession are different under the two sections. If the two sectionsreferred to possession of an excisable article of an identical characterand under identical conditions, it must then necessarily follow that therehas been unnecessary repetition on the part of the legislature, an inferencewhich would not lightly be drawn unless there is no escape from such aconclusion.
It seems to me, however, that the two provisions are intended to governtwo separate categories of cases. Section 43 penalises an act which isdone in contravention of the provisions of the Ordinance or of any rulemade thereunder, that is to say, an act done in the excess or contrary towhat is permitted to be done by the Ordinance, such, for instance, as thepossession by a person of more than two bottles of lawfully manufacturedarrack. A perusal of the earlier sections 9 to 31 would show that theypermit the importation, exportation, possession, and so on, of variousclasses of excisable article, subject to the conditions either express orimplied therein, and section 43 prescribes the penalty where a personcontravenes those provisions or any rule, licence or permit made or issuedthereunder, while section 44 does not punish a contravention of the pro-visions of the Ordinance but penalises an act which it regards as anoffence in itself.
I have not lost sight of the fact that section 44 has the qualifying words“ without lawful authority ” but those words are not intended to indicatethat any authority is granted to any person under the Ordinance to possessan excisable article of the nature referred to therein, but rather to conferimmunity on a person such as a carrier or a customs officer who may inthe exerciso of his calling or of his duties have possession of such prohi-bited excisable article. It is also to be noted that section .44 deals withthe offence of possession alone. Possession of unlawfully manufacturedexcisable articles as, for instance, pot arrack, cannot be punished undersection 43 as it is not an offence which is in contravention of anyprovision of the Ordinance other than section 44 itself.
I am therefore of opinion that section 43 cannot be said to extend tocases of possession of unlawfully manufactured arrack. The contention,therefore, advanced on behalf of the appellant is entitled to succeed.
The next question for consideration is whether an amendment of thecharge should be permitted at this stage. The point was expressly raisedby the defence, and it was open to the prosecutor or even to the Magistratewhen the point was taken to have amended the charge and to have recalledthe witnesses so as to enable them to be cross-examined as required
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8ANSONI J.—Cooray «. Dias
by law. But where the prosecutor, relying upon his view of the proprietyof the charge, has made no such application before the Magistrate, I donot think I should accede to any such, application at this stage, for theresult of granting such an application would, be to remit the case to thelearned Magistrate for a fresh trial, which I think would be unsatisfactoryin the circumstances.
I therefore set aside the conviction and acquit the accused.
Appeal alUneed.